Ottawa, Ontario, November 15, 2006
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Rasanath Escalona Perez, the Applicant, came to Canada from Venezuela with his family in 1990. In 2002, the family applied for protection in Canada. Julio Enrique Escalona and Denis Alexandra Perez Escalona (the parents) claimed to have fled Venezuela due to their fears of being prosecuted under that country’s drug laws. The parents alleged that police charges were trumped up against them after they witnessed a drug transaction between police and government officials. In a decision dated June 9, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the RPD) denied the family’s refugee claim. Leave to apply for judicial review of the RPD decision was denied on October 28, 2004.
[2] On April 30, 2005, the Applicant, separate from the rest of his family, applied for a pre-removal risk assessment (PRRA). In brief, the basis of his application was that he would be “detained upon arrival in Venezuela, and will be forced to endure torture and other forms of severe mistreatment in prison”. In a decision dated June 28, 2005, a PRRA Officer concluded that the Applicant would not be at risk if returned to Venezuela. The Applicant seeks judicial review of that decision.
Issues
[3] The issue in this application, as discussed during the oral submissions, is quite narrow. Specifically, did the PRRA Officer misapprehend the findings of the RPD and, thus, fail to address the claim of the Applicant made in the PRRA application. The issue relates to one sentence in the PRRA decision where the Officer states:
Although reference in the documentary evidence is made to retribution against family members of those who witness police misconduct, this issue was before the RPD and not substantiated.
[4] The Applicant submits that the RPD made no determination that the parents had not witnessed police misconduct and thus committed a reviewable error.
Standard of Review
[5] This issue is a question of mixed fact and law. Accordingly, it will be reviewed on the standard of reasonableness simpliciter (Kim v. Canada (Minister of Citizenship and Immigration, 2005 F.C. 437 at para. 19).
Analysis
(a) The PRRA Application
[6] The starting point of this analysis is the PRRA application. What risks were outlined by the Applicant? It is clear from the submissions made to the PRRA Officer that the Applicant fears that he would be subjected to arbitrary arrest and detention and to deplorable prison conditions. The Applicant’s claim for protection could not be based on the alleged witnessing of police wrongdoing since only his parents alleged that they had been the witnesses. To attempt to demonstrate that he would be in the same position of arbitrary arrest and detention as his parents, he submitted that the 2004 United States Department of State (DOS) Report, dated February 28, 2005, disclosed that the Applicant would face the same risks as his parents. A specific reference was made in the DOS Report that:
Throughout the country, witnesses to abuses by security forces reported instances in which their family members later were harassed, threatened, or killed.
[7] Thus, this assertion was made for the purpose of linking the Applicant to his parents and to the fear of prison conditions. This is made clear with the summary statement in the PRRA application that, “In a nutshell, prison conditions in Venezuela are so heinous as to create this genuine fear”. Having linked his claim to that of his parents, the Applicant’s claim is totally dependent on a conclusion that the parents are at risk of imprisonment.
(b) PRRA Officer Decision
[8] I turn now to the PRRA Officer’s decision. The sentence objected to by the Applicant is contained in a lengthy paragraph.
The applicant is now twenty-two years old and has lived in Canada for the past fifteen years. He has never been accused of having committed a crime in Venezuela. No warrant has been issued for his arrest. The evidence concerning his parents’ interest to the police was before the RPD, but was not found to support the conclusion that they could not get a fair trial or that they experienced past persecution. Counsel has filed documentary evidence to outline problems in Venezuela with arbitrary arrest, poor prison conditions, corruption, and the like. Although this background is recognized, the applicant has failed to establish personalized risk. As someone who left the country at age 7, he is not wanted by the public authorities. Although reference in the documentary evidence is made to retribution against family members of those who witness police misconduct, this issue was before the RPD and not substantiated. Allegations of torture were not found to be credible or trustworthy. The panel concluded that the Criminal Court can fairly deal with the substantive nature of their defence. Family members were not found to be at risk by the panel because of their parents’ legal problems. New evidence has not been filed that would materially affect this conclusion. I am not satisfied that there is a serious possibility that the applicant would face persecution in Venezuela at the hands of the police because of his parents’ drug charges. In addition, he is not at substantial risk of torture, death or cruel and unusual treatment or punishment.
[9] I will now turn to the RPD decision.
(c) The RPD Decision
[10] The RPD decision forms a base line for the PRRA Officer’s decision. In this case, the RPD concluded that, as of June 9, 2004 (the date of its decision), the removal of the family to Venezuela would not subject them to a risk to their lives or a risk of cruel and unusual punishment or a danger of torture. In general, the RPD expressed serious concerns regarding the credibility of the parents. However, the RPD’s key determinations were that:
- The parents could expect a fair process of prosecution in respect of the outstanding warrant for their arrest;
- There is no serious possibility that the parents would be “picked up upon their return, and immediately imprisoned and subjected to a long process of detention, or held indefinitely”.
[11] The claims of the children – including that of the Applicant – were based on those of the parents and no separate risks were evidently identified for the children. In other words, the risks of being a family member of someone who witnessed police wrongdoing could have been identified and assessed at the RPD hearing.
(d) The purpose of the PRRA
[12] It is well-established that a PRRA is not intended to be an appeal of a decision of the RPD (Kaybaki v. Canada (Solicitor General of Canada), 2004 F.C. 32 at para. 11; Yousef v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1101 at para. 21(F.C.); Klais v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 949 at para. 14 (F.C.)). The decision of the RPD is to be considered as final with respect to the issue of protection under s. 96 or s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), subject only to the possibility that new evidence demonstrates that the applicant would be exposed to a new, different or additional risk that could not have been contemplated at the time of the RPD decision. Thus, the PRRA Officer is under no obligation to assess the alleged risks now identified by the Applicant. I will now turn to the facts of this PRRA Application.
(e) Application to the Facts of this Application
[13] For the reasons that follow, I am satisfied that: (a) there was no misapprehension of the RPD decision by the PRRA Officer; and, (b) the decision of the PRRA Officer is sustainable on the standard of reasonableness simpliciter.
[14] There are three reasons why, in my view, the PRRA Officer did not err by including the statement that, “Although reference in the documentary evidence is made to retribution against family members of those who witness police misconduct, this issue was before the RPD and not substantiated.”
The reasons are:
- The PRRA Officer did not misapprehend the RPD decision;
- The evidence related to the witnessing of a drug transaction was evidence that could have been put to and considered by the RPD; and
- Given that the Applicant’s PRRA application relies on the risk to his parents, this risk of arbitrary arrest and imprisonment was dismissed by the RPD.
[15] First, I am not persuaded that the statement, when read in the context of the entire PRRA decision, shows a misapprehension of the RPD decision. I agree that there may be some question as to the accuracy of the statement made by the PRRA Officer; the RPD did not directly state that it disbelieved the parents’ story of witnessing police wrongdoing. Thus, one possible interpretation of the RPD decision is that the RPD believed the parents’ story that they had witnessed police misdeeds. Consequently, I am satisfied that the PRRA Officer’s interpretation of the RPD decision is not unreasonable.
[16] The RPD did not accept many elements of the parents’ story. Throughout the reasons, the RPD refers to a lack of reliable information. A reasonable interpretation of the decision is that the RPD did not believe the claim that the parents had witnessed police misconduct. Consequently, the RPD concluded that the parents had been detained on suspicion of being involved in illegal substances and assessed the possibility of risk on that basis. In other words, the RPD rejected the story of witnessing a drug transaction by the police. Given this interpretation, the PRRA Officer did not err when he stated that the issue of witnessing “was before the RPD and not substantiated”. On this interpretation – which is not unreasonable - the issue was, indeed, before the RPD and was not substantiated.
[17] Even if I assume that the PRRA Officer erred in stating that the issue of witnessing “was before the RPD and not substantiated”, there are two further reasons for not overturning this decision. As noted above, the issue of a separate risk for the children could and should have been made to the RPD. It appears from the RPD reasons that either this risk was not put to the RPD, or, it was rejected by the RPD. In any event, it is clear that this risk – if it exists – also existed at the time of the RPD hearing. It is simply too late to now put forward this “free-standing” risk. Although the PRRA Officer did not make specific reference to the failure of the Applicant to place this risk squarely before the RPD, a further review would not assist the Applicant as the PRRA Officer would be bound to reject this particular claim of risk on the basis that it was or should have been before the RPD.
[18] Finally – and most importantly – the overall risk identified by the Applicant was no different than that identified and directly dealt with by the RPD. As identified above, the Applicant’s fear is that, “In a nutshell, prison conditions in Venezuela are so heinous as to create this genuine fear”. It follows that prison conditions only become relevant if the Applicant is to be arrested and arbitrarily detained for a lengthy period. In respect of the parents, this is precisely what the RPD assessed in its decision. The RPD found that there is no serious possibility of the parents being picked up upon their return, and immediately imprisoned and subjected to a long process of detention, or held indefinitely. On the principle that the PRRA determination is not to be an appeal of the RPD decision, the conclusions of the RPD are final. When the lengthy paragraph from the PRRA is viewed in this context, I can see no error. In short, it is not unreasonable to conclude that the Applicant, who relies on his link to his parents, is at no greater risk of imprisonment than his parents. As we can see from the PRRA Officer’s reasons, the PRRA Officer considered the question of whether the Applicant had shown any individualized risk and concluded that he had not. In short, the PRRA Officer understood and addressed the claim that was put forward by the Applicant. I see no reviewable error.
Conclusion
[19] For these reasons, the application will be dismissed. I agree with the parties that there is no question for certification.
ORDER
This Court orders that:
1. The application for judicial review is dismissed; and
2. No question of general importance is certified.
“Judith A. Snider”
________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4690-05
STYLE OF CAUSE: RASANATH ESCALONA PEREZ v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 2, 2006
AND ORDER Snider, J.
APPEARANCES:
Mr. Russ Makepeace FOR THE APPLICANT
Mr. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Russ Makepeace FOR THE APPLICANT
Makepeace Romoff
Barristers & Solicitors
John H. Sims, Q.C. FOR THE RESPONDENT